US Copyright Office: 01taylor DVDCCA

Before the

Library of CongressCopyright Office

Washington, D.C.

In the Matter of ::Exemption to Prohibition on Circumvention : Docket No. RM 2005-11of Copyright Protection for Access Control :Technologies :____________________________________:

REPLY COMMENTS OF THEDVD COPY CONTROL ASSOCIATION, INC. 

Pursuant to the Notice of Inquiry (“Notice”) that the United StatesCopyright Office (“Office”) published in the Federal Register on October 3, 2005, theDVD Copy Control Association, Inc. (“DVD CCA”), by and through its attorneys,submits the following reply comments with respect to certain initial comments thatproposed exemptions for certain “classes of works” – access to which is protected by theContent Scramble System (“CSS”) – from the “anti-circumvention” prohibitions found inthe Digital Millennium Copyright Act of 1998 (“DMCA”). Below the DVD CCAspecifically responds to certain initial comments requesting exemptions for (1) thecreation of clip compilations from DVD for educational use when they are generallyprotected by CSS or when they also include navigation controls or region coding; and (2)derivate and collective works containing public domain works that are protected by CSS,which prevents their educational use, and then DVD CCA treats the final set of initialcomments that relate to consumers’ use of DVDs as three broad exemptions as each

DC1:\219385\03\4P@103!.DOC\99980.0464

individual submission in its respective group shares at least the one common themeidentified in the group’s name. Those groups are (1) making backup copies of DVDs, (2)playing DVDs on Linux operating systems, and (3) copying all copyright protectedwork.

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As an overall matter, DVD CCA notes that a large number of the requestsappear to request circumvention for purposes that are not “fair use” (

e.g.

, making“backup” copies of prerecorded DVD discs) or otherwise would seriously undermine therights of copyright holders, effectively requesting an impermissible administrativeabrogation of copyright law. As it has in prior proceedings, the Copyright Office shouldtake great care in analyzing the requests to ensure that those that are clearly not aimed atfair uses are denied on that basis alone. As discussed in detail below, the requests relatedto CSS as a technological protection measure, and the DVD video content protected usingCSS, should be denied for other reasons as well.I.

The DVD CCA

DVD CCA is a not-for-profit corporation with its principal office inMorgan Hill, California. DVD CCA licenses CSS for use to protect against unauthorizedaccess to or use of prerecorded video content contained on DVD discs. Its licenseesinclude the owners of such content and the related authoring and disc replicating

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By December 1, 2005, the Office received some seventy-four (74) submissions in thecourse of the initial comment period, and as the Office has already noted, the majority of the initial comments filed by private citizens do not meet the Office’s submissionrequirements. For example, a number of comments failed to propose a “

class of works

”that should be exempted and instead proposed broad exemptions without providing: (1) adefinition for a “

class of work

” to be exempted, (2) evidence of noninfringing use of aparticular work, or (3) identification of an access control that is restricting circumvention.Accordingly, the DVD CCA believes that the Office should reject these proposals.

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companies; producers of encryption engines, hardware and software decrypters; andmanufacturers of DVD players and DVD-ROM drives. The availability of CSS wascritical to enabling DVD products to become the fastest growing consumer electronicsproduct in history, allowing consumers to enjoy movies and other video content inexciting new ways. This was possible because CSS allowed content owners to protecttheir copyright-based rights in the audiovisual content encoded onto DVD discs. Thetechnology does so by allowing the content owner to encrypt the content in a manner thatrequires the use of a licensed decryption product to view the content. In order for aproduct to be licensed to decrypt the content, the manufacturer of the product is requiredby the CSS license to equip the product in a manner that adheres to certain rules that arespecifically designed to protect copyright interests of the content owner.At the outset, it is important to note that CSS is "an effective technologicalprotection measure" covered by the anti-circumvention provisions of the DMCA, inparticular the "access control" anticircumvention provisions of Section 1201(a).

SeeUniversal City Studio v. Corley

, 273 F. 3d 429, 441-42 (2nd Cir. 2001) (noting that thetrial court had found that the posting of DeCSS, a program designed to defeat CSS, was aviolation of Section 1201(a)(2)(A) because CSS was a technological measure that"effectively controls access to a work");

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